The Supreme Court’s Hobby Lobby decision threatens all contraception

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By SARAH R. BOONIN

WHEN THE U.S. SUPREME COURT RULED 5-4 THIS PAST SUMMER IN THE CASE OF BURWELL v. Hobby Lobby Stores, Inc., the court’s majority tried to cast it as a decision about “religious freedom.” That’s because it allowed closely held corporations with religious objections to certain types of birth control to escape the mandate of the Affordable Care Act to provide contraceptive coverage to its employees.

Commentators widely condemned the “breathtakingly broad” scope of the 5-4 opinion in Hobby Lobby, and many bemoaned the court’s further personification of corporations as having religious faith. But a closer look at Hobby Lobby reveals a far broader and deeper threat to women’s reproductive health than most realize. Perhaps that is because the court’s majority virtually erased women from the pages of its opinion, even though it was about our lives.

Any study of U.S. reproductive-health law should begin with the case of Griswold v. Connecticut. Written almost 50 years ago, Griswold held that the constitutional right to privacy includes the right of married couples to make personal decisions about using contraceptives. It ushered in a new era of women’s control over their bodies and transformed women’s ability to participate more equally in nondomestic spheres.

Since Griswold, the right to contraception has served as the foundation for the court’s treatment of women’s reproductive health. It laid the legal groundwork for a broad range of sexual and reproductive freedoms, including the right to abortion, the decriminalization of same-sex intimacy and, most recently, the right to same-sex marriage. Yet a majority of the court in Hobby Lobby displayed an utter disregard for Griswold and women’s access to contraception.

The Hobby Lobby majority barely discussed the right to contraception. Tasked with balancing the right of a corporation’s free exercise of religion under the 1993 Religious Freedom Restoration Act against the government’s interests in providing contraceptive coverage, the majority did little balancing at all. Instead, the majority explained in great detail the role of religion in the corporations that filed suit.

Tellingly, the majority referenced the right to privacy just once—and that concerned the privacy rights of corporations. The majority so cleverly framed the issue as exclusively about religious freedom that it was easy to miss any other part of the equation. Hobby Lobby might as well have been a decision about a corporation’s religious objections to toenail clipping.

Perhaps the most glaring example of the opinion’s indifference to women’s reproductive interests came as the majority considered whether the government had a “compelling interest” in mandating contraceptive coverage. Almost as an aside, the majority declared the government’s justifications for the mandate—including public health and gender equality—to be too “broad” and “unfocused.” But how are public health and gender equality any broader than the “sincerely held religious beliefs” that carried the day? Without deciding the issue of compelling interest, the majority grudgingly assumed the government’s interests were sufficient— but then they ruled in favor of Hobby Lobby on other grounds.

To be clear: A majority of the U.S. Supreme Court refused to make a definitive decision on whether or not the government has compelling reasons for ensuring women’s access to contraception. Even Justice Anthony Kennedy was disturbed by this and wrote separately to clarify, among other things, that the contraceptive mandate furthers “a legitimate and compelling interest in the health of female employees.”

The majority went to great lengths to inform readers that the opinion should be read narrowly as applying to the “very specific” facts of the case. The court assured readers that they need not worry about collateral damage to public-health laws, other medical procedures and drugs, and antidiscrimination laws. The court essentially gave a free pass for religious discrimination only when it comes to women and their reproductive health.

That the court thought it palatable to relegate women’s contraceptive access to a special-interest category rather than a basic health-care necessity is offensive. That it offered its twisted reading of the Religious Freedom Restoration Act as more plausible than the alternative—that religious freedom ends where women’s constitutional rights begin—is astonishing.

The court claimed that the decision applies to only four types of contraception viewed—inaccurately—as tantamount to abortion. Yet nothing in the opinion appears to prevent a corporation from objecting to all forms of contraception. Equally disingenuous was the court’s promise that religious exemptions extend only to “closely held” corporations like Hobby Lobby, since roughly 90 percent of U.S. corporations are closely held.

Indeed, less than a week after the Hobby Lobby decision, the court expanded its attack on the contraceptive mandate in the case of Wheaton College v. Burwell, temporarily blocking the government from enforcing the mandate against a religious college (not a closely held corporation). The emergency order seems to extend to all forms of contraception, not just the four most “objectionable.”

Wheaton already qualified for an accommodation under the contraceptive mandate; the college merely needed to notify the third-party administrator of its health plan about its religious objection, and the administrator would be required to directly arrange coverage. But even that was too great an imposition on religion for the court. As a result, many women insured through religiously affiliated nonprofits (hospitals, colleges, charities and more) likely will miss out on contraceptive coverage unless the Obama administration acts.

The majority opinion in Hobby Lobby is startlingly broad, as Justice Ruth Bader Ginsburg wrote in her scathing dissent. It has the potential to neuter important federal and state laws, and propels corporations further into the realm of personhood. And the mandate will probably land again in the court’s lap, with the majority already having demonstrated its willingness to color outside the lines it drew in Hobby Lobby.

We already knew that a majority of the court is decidedly anti-abortion, but in Hobby Lobby and Wheaton we have had a terrifying glimpse into the majority’s hostility toward an even more foundational aspect of women’s reproductive health—the right to contraception. More than 88 percent of women ages 15 to 44 who have had sexual intercourse have used a highly effective, reversible method of birth control—the pill, patch, IUD or injectables. Hobby Lobby should be of grave concern to that 88 percent.

Congress has the power to fix the law that the court’s majority in Hobby Lobby distorted, and we should insist that it does so.

Reprinted from the Fall issue of Ms. To have this issue delivered straight to your door, Apple, or Android device, join the Ms. Community.

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The upcoming election gives state voters a voice on women’s rights

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By GAYLYNN BURROUGHS

IN NOVEMBER, VOTERS WILL have the opportunity to decide several critical issues in their states—from banning abortion and birth control to legalizing marijuana to raising the minimum wage to increasing voting rights to restricting labor rights to granting state constitutional rights for women.

State ballot measures are a significant part of the U.S. political process, allowing voters to engage directly in our democracy. Each state has its own rules about how a measure makes it to the ballot but, in general, a measure can be referred to the ballot either by the state legislature or by a group of citizens who collect the required number of signatures.

Through ballot measures, citizens this fall will, for better or worse, create change that will potentially have long-lasting effects. Here are a few critical measures affecting women this fall. Read up, then get out and vote!

PERSONHOOD.
Anti-abortion and anti-birth-control extremists continue to push for state constitutional amendments to outlaw abortion and some forms of birth control by granting rights to fetuses, embryos and fertilized eggs. After passing a series of anti-abortion bills into law in 2013, the North Dakota state legislature, ignoring opposition from the North Dakota Medical Association, placed on the ballot Measure 1 to amend the state constitution to provide an “inalienable right to life” at “any stage of development.” If passed by the voters, supporters say it will ban all abortions cretions in the state, without exception, and could make illegal many forms of birth control, stem-cell research and in vitro fertilization. Measure 1 also threatens end-of-life care and could interfere with organ donation.

Personhood USA’s Colorado chapter is trying a different tactic. Colorado voters have twice soundly defeated broad personhood amendments to the Colorado constitution, in 2008 and 2010, but the new Amendment 67— which would amend the state constitution to define “person” and “child” to include “unborn human beings”— would only affect the state criminal code and Wrongful Death Act.

Though the strategy is arguably different, the result is the same. If passed, Amendment 67 would threaten abortion rights, birth control, fertility treatments and some medical treatments for critically ill pregnant women—and open up the possibility of criminal investigations into miscarriages. All pregnant women’s bodies would become potential crime scenes. Supporters of the amendment claim that the change would protect pregnant women from crime—but we’ve heard that one before. The reality is that these laws are used to punish women, many who are struggling with drug dependency and mental-health issues and too often suffer tragic pregnancy outcomes.

ABORTION.
In Tennessee, women’srights groups and reproductivehealth advocates are fighting against Amendment 1, a ballot measure that would amend the state constitution to declare that there is no right to abortion in Tennessee—even in cases of rape, incest or to save the life of the mother. If passed, the amendment would give the state legislature even more room to create far-reaching restrictions on abortion access, even for women in the most tragic circumstances. The Tennessee constitution provides some of the strongest privacy rights in the nation, but this amendment would take away those rights and open the door further to government interference in women’s personal decision-making.

BIRTH CONTROL.
Just before the U.S. Supreme Court ruled in Hobby Lobby v. Burwell (see Page 10) that owners of closely held corporations could refuse to provide insurance coverage for birth control on religious grounds, legislators in Illinois decided to put a related question to the voters: “Shall any health insurance plan in Illinois that provides prescription drug coverage be required to include prescription birth control as part of that coverage?” Although the outcome of the advisory referendum will not be binding and this coverage is already required under Illinois law, an overwhelming “yes” vote this November would signal a strong level of state support for the Affordable Care Act’s contraceptive-coverage benefit.

EQUAL RIGHTS.
This year saw increased activity in support of constitutional protections against sex discrimination. In Oregon, Vote ERA collected more than 118,000 signatures to place Measure 89 on the ballot to determine whether an equal rights amendment should be added to the state constitution. If it passes, Oregon will join 20 other states in having a state constitutional prohibition on sex discrimination. And the Oregon measure adds to the momentum created in state legislatures to ratify the federal ERA. The Virginia Senate, for example, has voted for the third time since 2011 to ratify the ERA (the House failed to bring the measure to a vote), and the Illinois House is expected to vote on ERA ratification this fall. In May, the Illinois Senate also overwhelmingly voted for ratification, and if the ERA passes the state House, Illinois will become the 36th state to ratify the federal ERA.

MINIMUM WAGE.
With federal minimum-wage legislation stalled in Congress, state and local governments such as Hawaii and Seattle have increased minimum wages on their own. Now Alaska and South Dakota will offer measures on their ballots to increase the minimum wage. Women make up the majority of low-wage workers, so would especially benefit from an increase, which would help close the gender pay gap, reduce women’s poverty and provide more economic security for families. Neither Alaska nor South Dakota propose to raise their minimum wage as high as $10.10—as the federal bill would—but both are moving in the right direction.

VOTING RIGHTS.
State voter-suppression laws—which disproportionately hurt women and people of color—have resurged since last year’s Supreme Court decision in Shelby v. Holder invalidated a key provision of the Voting Rights Act. Proponents of voting rights are now going on the offensive and directly to voters. Illinois voters can determine whether the state should amend its constitution to strengthen voting rights, and Connecticut voters will decide whether to amend their state constitution to allow early voting.

Reprinted from the Fall issue of Ms. To have this issue delivered straight to your door, Apple, or Android device, join the Ms. Community.

Comments on this piece? We want to hear them! Send to letterstotheeditor@msmagazine.com. To have your letter considered for publication, please include your city and state.